The New "Managerial Misclassification" Challenge to Old Wage and Hour Law; Or, What Is Managerial Work?

Abstract

From the mid-1990s to the mid-2000s, roughly 1.3 million employees in California were members of class action lawsuits claiming they were deprived of overtime pay because their employers erroneously misclassified them as "managers." The total number of former and current employees represented in these class actions constitutes roughly 10% of California's private sector employment and is about as large as total union membership in the state.1 These California-based lawsuits have been the leading edge of a national trend in managerial misclassification litigation under the Fair Labor Standards Act (FLSA). Outside of California, the pace of class actions rose from roughly a handful of cases filed annually in the mid-1990s to roughly 50 per year filed annually in the mid-2000s.2